THE NATION: Senate Rules; If Impeachment Seems Strange, Just Wait for the Trial

All 100 senators are in their seats. In the well of the Senate is a defense table. President Clinton may or may not be at the table, but his lawyers are, on the edge of their chairs. Facing them, at a prosecution table, are Representative Henry J. Hyde of Illinois and a few of his Republican colleagues.

High on the dais, Chief Justice William H. Rehnquist leans forward in the presiding officer's chair and reads solemnly into the microphone from a slip of paper handed up to him by the Senate parliamentarian: ''Senators, how say you? Is the respondent, William Jefferson Clinton, guilty or not guilty? The clerk will call the roll.''

One after another, as their names are called alphabetically, the senators rise behind their desks and utter the first words they have spoken about the matter in public session since the impeachment trial began. No speeches. No explanation. Just ''guilty'' or ''not guilty.''

That is the way the trial will end -- probably sometime next summer -- if a majority of the members of the House of Representatives vote this week to impeach the President on the accusations recommended by the House Judiciary Committee, and if the Senate goes forward with a trial.

Many people in and around Congress think it will never get that far -- that somehow, though no one can say just how, the Senate will avert a drawn-out legal process that could tie up the country for months.

That might seem logical, since no one imagines that the Senate will come close to obtaining the two-thirds majority needed to convict the President and remove him from office. But others -- not just Republican opponents of the President but also steadfast guardians of the Senate's prerogatives like Robert C. Byrd, Democrat of West Virginia -- believe that the Senate would be obligated to try the President if the House voted to impeach him.

Besides, nothing about an impeachment trial would be logical, by ordinary legal standards. This trial would be part law and part politics, governed partly by the Constitution, partly by ancient Senate rules and partly by the seat of the pants. In the history of the nation, there have been only 13 such trials (one of a President), and only 7 convictions (all of Federal judges). The only trial of a President, in which Andrew Johnson was acquitted by one vote, was 130 years ago.

In all of academia, in all the library stacks, in all the cubicles and carrels of the Capitol, there is no reference book that spells out what the impeachment trial of a President would look like in 1999, and there is no person who considers himself or herself an absolute authority.

''The most important thing to know about a Senate trial of a President is how much we do not know,'' said Walter Dellinger, a constitutional scholar and former acting Solicitor General. ''We don't know whether it can be confined in a rational way or whether it will get out of control and take on a life of its own.''

Consider these anomalies:

*The rules -- 26 of them -- would essentially be those written for the Johnson trial in 1868. In that era, there were only 54 senators, in session only a small part of the year and working with quill pens under gas lamps. But Senate rules are so hard to change that it is unlikely these would be tinkered with in any meaningful way.

*Under the Constitution, the Chief Justice must preside. (The Founding Fathers realized it would be a conflict of interest for the Vice President to preside over the Senate in an impeachment trial of a President.) The Chief Justice could be overruled on any matter by a majority vote of the senators. But if a tie vote occurred, he would cast the tie-breaker.

*Under the Senate rules, the senators, who think nothing of speaking for hours on the most mundane topic, would not be allowed to speak during the trial. To question a witness, they could pass a note to the Chief Justice, who would pose the question.

*All witnesses would testify and all evidence would be presented in public -- presumably on television, no matter how salacious and how embarrassing. But the senators' deliberations would be in closed session. No senator would be allowed to speak for more than 10 minutes in these sessions on preliminary matters. When the final verdict was debated, 15 minutes would be allotted each senator, again behind locked doors.

SENATOR TRENT LOTT of Mississippi, the Republican leader, insists he is making no plans for a trial, and there is no evidence to the contrary. To plan before the House votes to impeach, he says, would be presumptuous.

But hardly anyone who has examined the impeachment process believes that a trial could be concluded in ''three days to three weeks,'' as Senator Lott suggested in a recent television interview. Alan I. Baron, a lawyer here who was special impeachment counsel during the trials of two Federal judges in the 1980's, figures that if the Senate takes up the case in early January, a trial might be completed by late summer.

President Clinton would have to be given a month or two to prepare for the trial, Mr. Baron said. Then, he said, there would be months of pre-trial activity.

The first question to be answered would be whether a vote of impeachment by the lame-duck 105th Congress would be sufficient for the Senate to conduct a trial in the new Congress or whether the new House (with a smaller Republican majority) would have to impeach the President all over again.

Chief Justice Rehnquist would rule first on this. His ruling would be subject to reversal by the senators. Because this is a constitutional question, the matter would doubtless go next to the Supreme Court -- where the Chief Justice, of course, presides.

(Paradoxically, Chief Justice Rehnquist comes as close as anyone in the country to being an expert on impeachment trials. In 1992, he published a book, ''Grand Inquests,'' on the two most famous impeachment trials, both of which ended in acquittal -- the Johnson trial in 1868 and the trial of Justice Samuel Chase of the Supreme Court in 1805.)

Next, motions on other questions would arise. What standard of proof would be required for conviction -- ''beyond a reasonable doubt'' as in a criminal trial; ''preponderance of evidence,'' as in a civil trial, or something completely different? What is the definition of perjury, the accusation in the first two articles of impeachment recommended last week by the House Judiciary Committee? What rules of evidence would apply? For instance, would hearsay evidence be allowed? Would the President's lawyers and senior advisers be protected from testifying by attorney-client privilege and executive privilege? If misconduct by the independent counsel, Kenneth W. Starr, can be proved, should the case be dismissed?

To prepare for a Clinton trial, scores of witnesses would have to be interviewed and documentary evidence would have to be reviewed. The prosecution could not rely, as the House Judiciary Committee did, solely on Mr. Starr's investigation.

In some respects, the trial would be similar to those in courtrooms. There would be opening statements, presentation of witnesses and evidence by both sides, cross-examinations, rebuttals and closing arguments. The witnesses -- Monica S. Lewinsky, Linda R. Tripp and the rest -- would testify in public, under oath, and would be subjected for the first time to cross-examination. The prosecution would be supervised by a team of Representatives, called House managers, led by Mr. Hyde. They would function like district attorneys who oversee cases but leave the courtroom work to assistants. The organization of the prosecution's case, questioning of witnesses and opening and closing arguments presumably would be handled by prosecutors hired from the outside. Mr. Clinton's defense would also be conducted by a team of hired lawyers. Because his defense in an impeachment trial is one of the President's official duties, the cost would be borne by the Government. The President could choose whether to appear at the trial and whether to testify himself.

A big difference from a courtroom trial, of course, would be the nature of the jury. Senators would not represent an impartial jury of the President's peers. Unlike an ordinary jury, the senators would decide questions of law as well as fact. And the verdict, no doubt, would turn more on politics than on evidence. Under the Constitution, it would require a two-thirds vote of the senators present to convict the President and remove him from office.

The other big qualification to keep in mind is that under the Senate rules, the trial could be abandoned at any point by a majority vote. This is how a plea bargain might occur. The senators could agree to stop the trial if they decided to censure or otherwise punish the President instead, and if the President agreed to accept the offer, as he indicated he would on Friday.

The last time the question of a Senate impeachment trial was seriously considered was in August 1974, after the House Judiciary Committee had voted to recommend the impeachment of President Richard M. Nixon. The Senate voted to direct its Rules Committee to examine the procedures and precedents.

Then Nixon resigned. Whatever thought had gone into the matter was quickly shelved.

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A version of this article appears in print on December 13, 1998, on Page 4004001 of the National edition with the headline: THE NATION: Senate Rules; If Impeachment Seems Strange, Just Wait for the Trial. Order Reprints|Today's Paper|Subscribe